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EXHIBIT 2.1
CUSTOM SALES AGREEMENT
BASE AGREEMENT
International Business Machines Corporation
000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Signature Copy
Agreement No. X0723
Customer: Genesis Microchip, Inc. 000 Xxxx Xxxxxx Xxxx. Xxxxx 000
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
This Custom Sales Agreement, which consists of this Base Agreement and Statement
of Work Attachments, shall be referred to as the "Agreement". The term of this
Agreement commences on March 9, 1998 and expires on March 8, 2001.
By signing below, the parties each agree to be bound by the terms and conditions
of this Agreement and the initial Statement of Work, Attachment No. 1, and no
additional signature on the initial Statement of Work is required. Subsequent
Statement of Work Attachments under this Agreement must be signed by the parties
to become effective.
Upon signature by both parties, it is agreed this Agreement constitutes the
complete and exclusive agreement between them superseding any prior agreements,
written or oral, relating to the subject matter notwithstanding anything
contained in any document issued by either party. This Agreement may not be
amended or modified except by a written amendment signed by both parties.
The parties expressly acknowledge that they have received and are in possession
of a copy of any referenced item which is not physically attached to the
Agreement and any such item will be treated as if attached.
Accepted and Agreed To:
Genesis Microchip, Inc.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: V. P. of Manufacturing Operations
Date: March 16, 1998
International Business Machines Corporation
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: V. P. of North America Sales
Date: April 2, 1998
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1.0 DEFINITIONS Capitalized terms in this Agreement have the following meanings.
An Attachment may define additional terms; however, those terms apply only to
that Attachment.
1.1 "Item" shall mean any part, specification, design, document, report, data or
the like which Customer delivers to IBM under this Agreement.
1.2 "Product" shall mean production units to be sold or purchased under this
Agreement. Products shall not include Prototypes.
1.3 "Prototype" shall mean a preliminary version of a Product which may or may
not be functional, is intended for internal use and testing and not for resale,
and is not suitable for production in commercial quantities.
1.4 "Purchase Order Lead Time" shall mean the required minimum amount of time
between IBM's receipt of the purchase order issued by Customer and the requested
shipment date necessary to accommodate manufacturing cycle time.
1.5 "Related Company" of a party hereunder shall mean a corporation, company or
other entity which controls or is controlled by such party or by another Related
Company of such party, where control means ownership or control, direct or
indirect, of more than fifty (50) percent of: (i) the outstanding voting shares
or securities (representing the right to vote for the election of directors or
managing authority), or (ii) the ownership interests representing the right to
make decisions for such a corporation, company or other entity (as the case may
be in partnership, joint venture or unincorporated association having no
outstanding shares or securities). However, any such corporation, company or
other entity shall be deemed to be a Related Company of such party only so long
as such ownership or control exists.
1.6 "Service" shall mean any manufacturing activity or design, or engineering
work IBM performs.
1.7 "Shipment Date" shall mean IBM's estimated date of shipment.
2.0 AGREEMENT STRUCTURE
2.1 This Agreement consists of: (i) the Base Agreement which defines the basic
terms and conditions of the relationship between the parties; and (ii)
Attachments which specify the details of a specific work task. An Attachment may
include additional or differing terms and conditions, however such terms and
conditions apply only to that Attachment. Attachments also include any
specification documents agreed to by the parties applicable to the specific work
under that Attachment.
2.2 If there is a conflict among the terms and conditions of the various
documents, Attachment terms and conditions govern.
2.3 Purchase orders will be used to convey information only and any terms and
conditions on those are void and replaced by this Agreement.
2.4 Either party may include its Related Companies under this Agreement by
written agreement with the other party.
3.0 ORDER AND DELIVERY
3.1 Customer shall order Products and Services by issuing written purchase
orders, which are subject to acceptance by IBM. Purchase orders for Products
must be received by IBM in advance, with at least the Purchase Order Lead Time
specified in the applicable Attachment.
3.2 Products will be shipped to Customer FOB plant of manufacture, except for
Products shipped outside the United States which will be shipped EXWORKS (as
defined in ICC INCOTERMS 1990).
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3.3 Title to the Products and risk of loss shall pass to the Customer upon
delivery to the carrier for shipment to the Customer.
4.0 CANCELLATION AND RESCHEDULING
4.1 [***]
4.2 Customer may cancel or reschedule an order for Products and/or Services only
upon prior written notice to IBM. In the event of a cancellation or reschedule
which exceeds the rescheduling rights set forth in an applicable Attachment,
Customer shall pay the quoted price for Products and/or Services delivered or
ready for shipment and the cancellation charges set forth in the applicable
Attachment.
4.3 Customer agrees that if Customer decreases the total quantity of an order
that has a unit price based on an agreed to quantity Customer will pay an
applicable higher unit price for previous shipments and for new shipments.
5.0 PAYMENT
5.1 Prices for Products and Services shall be as set forth in an applicable
Attachment. IBM shall invoice Customer after the Products have been shipped or
the Services provided. Payment by the Customer will be due within thirty (30)
days from the date of invoice. Late payment of invoices will be assessed a
charge equal to the lesser of one and one-half percent (1.5%) per month or the
statutorily maximum rate of interest in accordance with the laws of the State of
New York. In addition, if Customer's account balance exceeds its credit limit
with IBM, or becomes delinquent, IBM may stop shipments to Customer or ship to
Customer on a prepaid basis until the account is current again.
6.0 TERMINATION
6.1 If either party materially breaches a term of this Base Agreement or an
Attachment, the other party may, at its option, terminate this Agreement or any
or all Attachments provided the party in breach is given written notice and
fails to cure such breach within 30 days or immediately in the event of (i)
insolvency, dissolution or liquidation by or against either party, (ii) any
assignment of either party's assets for the benefit of creditors, (iii) any act
or omission of an act by a party demonstrating its inability to pay debts
generally as they become due, (iv) any transfer of substantially all of either
party's business or assets to a third party, or (v) if IBM has a reasonable
basis to believe any of the Items infringe intellectual property rights.
6.2 [***]
6.3 If Customer terminates this Agreement or an Attachment, IBM will fill all
applicable previously accepted purchase orders for Products, but IBM shall not
be obligated to accept further applicable purchase orders after receiving
notice.
6.4 This Base Agreement will continue after its termination or expiration with
respect to any Attachments already in place until they expire, are terminated or
completed. Provided that no monies are due IBM, applicable Items shall be
disposed of as directed by Customer in writing at Customer's expense after a
termination or expiration.
7.0 CONFIDENTIAL INFORMATION
7.1 With the exception of prices and quantities of Products and/or Services
hereunder, no information exchanged between the parties shall be considered
confidential and/or proprietary to either party, or to any third party except as
may be specified pursuant to Section 7.2 below.
7.2 In the event IBM or Customer needs to disclose specific confidential
information to the other in order for IBM to furnish Products and/or Services
hereunder, such information shall be disclosed only pursuant to the terms of a
confidential information exchange agreement executed by the parties.
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8.0 LICENSE
8.1 [***]
9.0 TRADEMARK
9.1 Nothing in this Agreement grants either party any rights to use the other
party's trademarks or trade names, directly or indirectly, in connection with
any product, service, promotion, or to make any publication or publicity without
prior written approval of the other party or owner.
10.0 INTELLECTUAL PROPERTY AND INDEMNIFICATION
10.1 IBM agrees to indemnify Customer against damages assessed against Customer
as a result of a final judgment of a court of competent jurisdiction holding
that any Product sold or Service provided by IBM to Customer hereunder infringes
a patent or copyright of a third party in any country in which IBM sells or
provides similar products or services, up to the amount paid by Customer for
Products or Services provided hereunder; PROVIDED THAT Customer (1) promptly
notifies IBM, in writing, of the charge of infringement; or (2) allows IBM to
control and cooperates with IBM in the defense and any related settlement
action; and (3) upon the written request of IBM (a) allows IBM to modify or
replace the Product, or (b) returns the Product to IBM for a credit equal to
Customer's purchase price for the Product, provided Customer has followed
generally accepted accounting principles. Such indemnification does not apply to
a claim of infringement involving any Product sold or Service provided by IBM to
Customer which has been modified by Customer, used in combination with any
product not sold by IBM to Customer, or made, modified or provided by IBM in
compliance with Customer's specification(s). Customer agrees to indemnify IBM
against all damages and costs resulting from such a claim of infringement. The
foregoing states the entire obligation and exclusive remedy of IBM and Customer
regarding any claim of patent or copyright infringement relating to any Product
sold or Service provided hereunder.
10.2 Customer warrants that it is the originator, rightful owner or licensee of
all Items supplied to IBM hereunder and that to the best of Customer's knowledge
no part of such Items infringes any intellectual property rights.
11.0 LIMITATION OF LIABILITY
11.1 Neither party shall be entitled to indirect, incidental, consequential or
punitive damages, including lost profits based on any breach or default of the
other party, including those arising from infringement or alleged infringement
of any patent, trademark, copyright, mask work, or any other intellectual
property.
11.2 Except for nonpayment, no action, regardless of form, arising from this
Agreement may be brought by either party more than one (1) year after the cause
of action has arisen. IBM's liability for any and all causes of action shall be
limited in the aggregate to the greater of: (1) $50,000.00 or (2) the applicable
IBM price to Customer for the specific Products and/or Services that caused the
damages or that are the subject matter of, or directly related to, the cause of
action.
11.3 The limitation of Section 11.2 does not apply to: (1) payments referred to
in Section 10.1 and (2) damages for bodily injury (including death) and damage
to real property and tangible personal property caused by IBM's negligence.
11.4 Under no circumstances is IBM liable for any of the following: (A) third
party claims against Customer for losses or damages other than those in 11.3(1)
and (2) above; or (B) loss of, or damage to, Customer's or another parties'
records or data; or (C) when the Products and/or Services are used in
conjunction with medical devices or nuclear materials.
12.0 WARRANTIES
12.1 [***]
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12.2 THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OR USAGE
FOR PARTICULAR PURPOSE.
12.3 No course of dealing, course of performance, usage of trade, or description
of Product, Prototype or Service shall be deemed to establish a warranty,
express or implied.
12.4 If Customer claims that any Products and any incidental Services are
nonconforming, Customer shall (1) promptly notify IBM, in writing, of the basis
for such nonconformity; (2) follow IBM's instructions for the return of the
Products; and (3) return such Products freight collect to IBM's designated
facility. If IBM determines the Products are nonconforming, IBM will, at its
option, repair or replace the defective Products, or issue a credit or rebate
for the purchase price.
12.5 IBM's sole liability and Customer's sole remedy for breach of warranty
shall be limited as stated in this Section 12.
13.0 TAXES
13.1 IBM shall xxxx Customer for all applicable sales, use and gross receipts
taxes, unless Customer provides IBM with appropriate exemption certificates.
14.0 NOTICES
14.1 All communications and notices between the parties concerning this
Agreement shall be given to the appropriate individual listed in the applicable
Attachment and shall be deemed sufficiently made on the date if given by
personal service, sent via mail, facsimile or electronic data interchange.
Communication by facsimile or electronic data interchange is acceptable as a
"writing". The autographs of representatives of the parties, as received by
facsimile or electronic data interchange, shall constitute "original"
signatures.
15.0 INDEPENDENCE OF ACTION
15.1 Each party agrees that this Agreement will not restrict the right of either
party to enter into agreements with other parties for same or similar work, or
to make, have made, use, sell, buy, develop, market or otherwise transfer any
products or services, now or in the future, so long as confidential information
is not disclosed. IBM shall not sell, market or otherwise transfer to any third
party any Products using the trademark or trade name of Customer without prior
written consent.
16.0 UTILIZATION OF PRODUCTS
16.1 [***]
17.0 GENERAL
17.1 Neither party shall be responsible for failure to fulfill its obligations
under this Agreement due to fire, flood, war or other such cause beyond its
reasonable control and without its fault or negligence (excluding labor disputes
or payment obligations) provided it promptly notifies the other party.
17.2 The substantive laws of the State of New York govern this Agreement without
regard to conflict of law principles. Both parties agree to waive their right to
a jury trial in any dispute arising out of this Agreement and agree any action
concerning this Agreement shall be brought in a court of competent jurisdiction
in the State of New York. The prevailing party in any legal action hereunder
shall be entitled to reimbursement by the other party for its expenses,
including without limitation, reasonable attorney's fees.
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17.3 Customer may not assign its rights or obligations without the prior written
consent of IBM.
17.4 No delay or failure by either party to act in the event of a breach or
default hereunder shall be construed as a waiver of that or any subsequent
breach or default of any provision of this Agreement.
17.5 If any part, term or provision of this Agreement is declared unlawful or
unenforceable, by judicial determination or performance, the remainder of this
Agreement shall remain in full force and effect.
17.6 Any terms of this Agreement which by their nature extend beyond expiration
or termination of this Agreement shall remain in effect until fulfilled and
shall bind the parties and their legal representatives, successors, heirs and
assigns.
17.7 The headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement.
17.8 Each party will comply, at its own expense, with all applicable federal,
state and local laws, regulations and ordinances including, but not limited to,
the regulations of the U.S. Government relating to export and re-export.
Customer agrees that it is responsible for obtaining required government
documents and approvals prior to export and re-export of any commodity, machine,
software or technical data.
17.9 The UN Convention on Contracts for the International Sale of Goods shall
not apply to this Agreement.
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Semiconductor Contract Manufacturing Attachment No. 1
Custom Sales Agreement No. X0723
When signed by the parties below, the following Statement of Work shall be
incorporated into Custom Sales Agreement No. X0723 as Attachment No. 1 effective
on March 9, 1998. Attachments are governed by the terms and conditions of the
Base Agreement.
Statement of Work
CUSTOM SEMICONDUCTOR MANUFACTURING TASK ORDER
[***]
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[***] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
